Archive for the ‘Immigration Dept’ Category

Reading the following sentence, attributed to Lyn Sparks of Business Immigration Ltd in a news article today put chills down my spine:

“We get licensed every year don’t we”

Mr Sparks was apparently replying to questions about his activities following complaints lodged by 66 of his clients that he had breached the strict rules licensed immigration advisers must adhere to. His implication appears to be that he must be acting properly because he is licensed each year by the Immigration Advisers Authority (IAA).

The article explains:

All workers have similar complaints – primarily that they were charged fees of up to $15,000 for a job in New Zealand through Business Immigration and its overseas agents. Many took out loans in the Philippines to cover the fees, and were paying between 40 per cent and 50 per cent annual interest.

The reason I find this comment attributed to Mr Sparks chilling is that he appears to be using the status afforded by a poorly implemented but well-meaning licensing regime to prey on migrants.

This comment of course is entirely misleading and highlights deep problems with the licensing of immigration advisers which has dogged the system since its introduction in 2009 such as:

Protection for consumers only applies to immigration services
Section 44 of the Immigration Advisers Licensing Act 2007 only allows the IAA to accept complaints against advisers regarding “provision of immigration advice”. While you might expect advisers to be held to account for any actions as a professional that’s not the case at all. Advisers getting up to no good in any other area – for example recruitment – have nothing to fear from the IAA as any complaint will be rejected.

History has shown that the IAA will only act (for example to take away a licence) if the individual is convicted of a crime under another piece of legislation. This issue was raised back in 2009 but requires a change in the law and nothing has happened about this.As a result the actions of advisers charging for job search services are not covered at all by the licensing rules with few people realising this, creating opportunities for the unscrupulous.

No test of competence
While many long-standing advisers are highly competent this competence, effectively assured by licensing, has never actually been tested. When licensing was introduced in 2009 advisers working in the industry were required only to show three case files (which they picked) to be assessed by IAA staff to confirm the adviser’s competence. This alone is a poor test and I understand the IAA staff assessing these applications had no training or background in immigration.

From there to renew their license each year advisers only had to provide one case file (which again they picked) to be assessed by the same IAA staff. Interestingly while this process did check business systems it stopped checking prices charged some time ago following pressure from long-standing advisers who did not appreciate being questioned in this regard.

It wasn’t until 2012 that a level 7 qualification was introduced to provide a test of competence completed to any defined standard, however existing advisers did not have to sit this. Thankfully the IAA is now moving towards a system of randomly checking the work of advisers based on the records of the immigration department. This is excellent as it should identify problems and patterns, but it still will not spot issues like advisers charging excessive fees as suggested in this case.

It will be interesting to see what happens with this story. Mr Sparks has faced complaints and penalties before but is still operating. The IAA has indicated there has been insufficient evidence to take up this case but public awareness of this problem may force their hand.

Under this is the truth that the IAA can only investigate and punish for actions relating purely to the provision of immigration advice and in the past has taken a very narrow view of this, potentially allowing bad advisers to escape punishment as a result.

A strong and robust IAA is badly needed but currently it looks weak and indecisive. Let’s see what is done following these complaints.

This blog has been a little quiet since September. Apologies to regular readers, we’re now be back up and running.

In July I started the brand new Graduate Certificate in New Zealand Immigration Advice course. This together with running a full-time immigration consultancy and the community website move2nz meant that something had to give as I needed to sleep sometime.

This level 7 course was developed specifically for the Immigration Advisers Authority by the Bay of Plenty Polytechnic in collaboration with the University of Waikato in New Zealand and Victoria University in Australia to ensure graduate advisers are fully qualified with a high level of competence.

The purpose of this qualification is to provide consumers of immigration advice with individuals who have attained sufficient knowledge, practical skills and attitudes to meet the Immigration Advisers Authority requirements for licensing as a New Zealand Immigration Advisor.

Graduates will be able to critically review and evaluate immigration matters to provide immigration advice in accordance with the competencies mandated by the Immigration Advisers Authority.

I jumped at the chance to take this course as soon as it was announced as I had been waiting since the introduction of immigration adviser licensing for a qualification to be created. Studying full-time on top of everything else was tough and the course was very in-depth, but it has been absolutely worth it.

The course of study covered immigration operational instructions in detail as you would expect to ensure competency but also put considerable emphasis on ethics and a deep understanding of the licensed immigration advisers code of conduct and how this affects everything a licensed immigration adviser does – ensuring:

each immigration adviser’s technical competence has been tested;

they have the tools to ensure they can run their businesses professionally and ethically;

greater awareness and closer working with the Immigration department.

On 12 December 2012 alphabetical listings worked in my favour and I became the first person in the world to be awarded this qualification.

Right now there are only 42 other people in the world to have graduated from this course and, as many of these are not yet licensed immigration advisers, I am the only licensed immigration adviser in the South Island to be formally qualified with the GCNZIA.

That’s pretty cool :).

Changing the immigration industry

What will this qualification mean for the industry? We will have to wait and see, but I expect that a level 7 qualification with strong concentration on ethical behaviour and the Immigration Advisers Code of Conduct is likely to be used by migrant consumers are an indication of who they can trust.

I am very hopeful that this qualification and stronger application of the code of conduct will ensure more migrant consumers have an ethical and competent adviser helping them move to New Zealand. A big step forward for immigration adviser licensing.

As our regular members will know, move2nz is a lot more than just move2nz.com and through our history we have fought many times to ensure migrants acting in good faith are given a fair go by the immigration system.

Through move2nz we have been working to highlight the kind of risks faced by migrants on temporary visas while in New Zealand to help ensure people are prepared and protected against what can be serious risks.

Despite our best efforts sometimes people can quickly find themselves in terrible situations and this is exactly what happened to the Vermaak family from South Africa.

A deportation nightmare

On 12th May 2012 we first found out about a terrible situation, reading in the Christchurch Press newspaper. A family – Cherie and children aged 16 and 19 – were in desperate fear of being deported and having to move in to a garage as they were losing their home.

We immediately contacted to offer support as we have with many others in the past and found they were long-standing members of move2nz. What was brilliant this time was that we were also able to review the immigration decision being made because Mike is now a licensed immigration adviser.

The situation

Cherie had been working in New Zealand for four years in an important and skilled job. She tried to renew her work visa in March and the immigration department (INZ) first confirmed they had everything they needed, but just two days before her visa was due to expire INZ insisted she produce a police clearance certificate from South Africa.

These certificates take months to obtain and Cherie’s licensed immigration adviser had failed to remind her to get one. INZ refused to accept a declaration that Cherie had applied for the certificate which was strange as they had let her do so before, Cherie had not been back to SA since 2007 and her previous certificates had been completely clean.

This decision not to allow a declaration created a situation where two days later Cherie found herself with no visa, unlawful in New Zealand and subject to deportation. Of course this also meant that Cherie immediately lost her job as she no longer had the legal right to work in NZ. Cherie’s 16 year old daughter also no longer had the right to go to school and was forced to stay home half-way through her year 12 studies.

The family was now without a source of income and, as temporary visa holders, were not entitled to financial assistance. When the money ran out they started selling furniture to buy food.

When Cherie needed them most I am ashamed to say that her immigration adviser of four years refused to help because Cherie could not afford to pay the fees. On her own Cherie appealed the decision and then put in another visa application as she still had a full-time offer of skilled work. Both actions were declined.

By mid May the family were in serious trouble being kicked out of their home and soon to be kicked out of New Zealand.

Saving this situation

Mike put his Licensed Immigration Adviser hat on and waded through a foot-high pile of papers to find out what had happened. I worked with the Ministry of Education to successfully get Cherie’s daughter back to school.

The Press newspaper ran a story about the Vermaak family and the Christchurch community responded with incredible generosity offering food, help with immigration costs and help with rent.

It very quickly became clear to Mike reading this file that a mistake was being made by INZ and he negotiated for time to enable Cherie, a skilled worker, to find another job. INZ offered 6 weeks and said Cherie would have to leave if she did not have a job by this time.

Bizarrely, after having made a decision which effectively lost Cherie her job, INZ reversed it and agreed she could now enter a declaration relating to her police certificate if she found another job. Mike argued successfully for an extra month to give the 17 employers Cherie had applied to time to evaluate her application, but if Cherie did not have a job offer by 30th July she would have to leave New Zealand.

A chance to stay

Our own new immigration business was opening an office on August 13th and we were in the process of advertising for an Office Manager. Cherie applied for the job and, despite a month of advertising, was the only applicant with the skills we needed so we suddenly found ourselves able to offer her employment. This complicated things a bit but we submitted a Work Visa application which met every requirement on 23rd July.

The weeks ticked by with no news until 29th August when Mike received a letter from INZ. Cherie’s application was again declined and she had to leave New Zealand immediately or be deported.

We were absolutely gutted, especially as no reason for declining was given. As we covered back in March INZ directs staff not to record the reasons for decisions on cases like this. Cherie was left with no right of appeal waiting for a deportation order to be issued which would send her and her children back to South Africa with nothing. Potentially living on the streets in South Africa was suddenly a terrifying but very real possibility.

A final roll of the dice

Mike immediately wrote a letter to the Associate Immigration Minister Kate Wilkinson asking if she would review this decision.

The minister can simply refuse to intervene and so Mike put together 8 pages of reasons why this situation was unfair to slow the deportation.

In the meantime Mike began pulling together hundreds of pages of documented proof to back this request up. It was our only chance and absolutely final hope. If the minister refused to look at the case it was all over.

On 8th September the Vermaak family were finally forced out of their home.

We couldn’t see them living on the streets and so offered space in our own home, turning move2nz’s office into a room that Cherie and her children could share. This was not ideal but the only option we had – Mike and I couldn’t have lived with ourselves if we didn’t do everything in our power to support this family.

Of course this wasn’t the first time we have been in this position – long term members will remember we opened our home to the Smith family of 4 back in June 2009, supporting them for 6 months while their appeal was heard, giving them the chance to gain residency and get back on their feet which they have successfully done.

The Ministers decision – Thursday 13th September

On Thursday the decision came. This was much quicker than we had expected and Mike was only half-way through getting the documented proof ready. After putting over 400 hours of pro-bono work into this we thought this might be the end.

What we were delighted to read was that Kate Wilkinson had overturned the INZ’s decision, granting each of the Vermaaks a 12 month visa to sort out their situation.

(Click for enlargement)

This is all they ever needed and we are so happy for this family. They will be staying with us for the time being, but we are now looking forward to watching them get back on their feet. As soon as Cherie has her visa she will be starting work as our Office Manager and helping us set up the New Zealand Immigration & Settlement Services office to be the best immigration consultancy in New Zealand.

From a personal view this decision also means that Mike’s 100% success rate on applications and appeals is reinstated and is a fantastic result for move2nz which will continue to help supporting this family.

I hope you will join with us in wishing this brave family the very best for the future.

A few words from Mike

New Zealand’s immigration system is built to be open, fair and help attract great people who have a lot to offer this country, but sometimes migrants who are acting in good faith fall between the cracks. In cases like this the Associate Minister of Immigration Kate Wilkinson is the only ‘safety net’ to ensure decisions being made are fair and in New Zealand’s best interests.

Ms Vermaak’s case is a perfect example where decisions made by other people combined to create a situation where, though no fault of her own, a valued worker in an important job was suddenly catapulted along with her children into a nightmare of losing her job, her home and everything she had worked for years to build.

In situations like this the Associate Minister acts as a vital safety net to ensure fair and just decisions are made, upholding the integrity of what is an excellent immigration system and protecting New Zealand’s international reputation.

On receiving our cry for help Kate Wilkinson moved swiftly to get to the bottom of what had happened, recognise the terrible mistake being made, save New Zealand many thousands of dollars and end a nightmare which was likely to end with the family being returned with nothing to live on the violent streets of South Africa.

I have already written to express my appreciation and thanks for the help on this case: a big win for New Zealand. I would also like to express our thanks to The Press who alerted us to this situation and have faithfully followed this story all of the way through and also move2nz members who supported our facebook campaign.

News stories

This story has been followed through the media, here are a number of the news stories written.

On 12th May this year I noticed the headline ‘Family lives in fear of deportation‘ and read about Cherie Vermaak and her children facing deportation from New Zealand. I immediately offered my help and have recently had news, but as background hereis where is all started:

A South African family that has been “fighting an immigration battle for the past five years” is now unlawfully living in Christchurch and says imminent deportation is more frightening than sleeping on the streets.

The article went on to say that:

She could not afford to pay rent next week and had been slowly selling “everything I own” to feed her two teenage children, Kyle, 19 and Zelda, 16.

Despite “pleading” for help from agencies, the family was not eligible for Government support because they did not have residency, nor could they temporarily sleep in their car because that had also been sold.

This was someone who clearly needed help – we met for the first time on May 16th and, as soon as Tammy and I found out the circumstances of the case, we offered our help. I’d like to thank The Press for running the story on Cherie’s situation, without this we would never had known anything about it.

Making a difference
Over the past 7 years as move2nz, Tammy and I have been able to give help in supporting people – for example our recent work with Charmain Timmons.

Our focus is on fairness and transparency in immigration. No matter how good information you give out is sometimes people fall between the cracks and end up in terrible situations. Rather than standing around ‘tut-tutting’ we take action to make a positive difference.

Immigration help
Now as a licensed immigration adviser it was great to be able to offer Cherie direct help with her immigration problems, something we previously had to rely on others for with varying degrees of success. I was pretty disgusted to find that she had been working with an adviser since she arrived in NZ, but they had walked away when the family ran out of money.

The first step was looking after the family: the Press ran a brilliant story and offers of help flooded in. Kiwis are amazingly generous when they realise a hard-working mum just needs a fair-go and this help made a huge difference.

With immediate fears of being turned onto the street taken care of we contacted the Ministry of Education to get Zelda back into school.

Sorting out the immigration situation
I collected a foot-high pile of papers and spent hours working out what had happened. It was great to be able to help with this and I soon worked out the problem.

Over the years working for the council Cherie had only ever been offered a 12 month contract. Because of this she could only get a 12 month visa and never move to the safety of residence. She was in the process of applying for yet another Work Visa when she was offered a permanent contract after helping through the devastation of the Canterbury earthquakes. Finally she could apply for residency and be safe.

Unfortunately there was one problem: her police clearance certificate from South Africa didn’t turn up in time. Her application to renew her Work Visa was declined so she lost her job – no visa = no work = no money.

As we’ve been saying on move2nz for years, migrants on temporary visas are vulnerable and this case proved that very well. Over time the family’s savings got used up and they sold off all of their possessions. As temporary migrants they were not entitled to any benefit or government help meaning eventually they would become destitute and have to be deported unless Cherie could get another visa.

You’ve got six weeksI spoke to Cherie’s immigration case-officer to explain the situation, wrote a couple of letters and explained just how useful Cherie as a skilled worker was. After some good discussion the answer back from INZ: Cherie had six weeks for Cherie to find a skilled job that matched her qualifications and experience.

This was a very slim chance for the family knowing how long it can take to get a job offer and we needed to move fast. I re-wrote Cherie’s already good CV and she worked night and day contacting employers about potential jobs. Meanwhile the media continued to run stories (see below).

The six weeks went very quickly and most of the employers Cherie had applied to were only just finishing advertising, meaning they wouldn’t interview for days or weeks. Things started to look pretty serious for the family as their deadline to get out of New Zealand loomed.

In the next installment of this story I’ll tell you what happened next ;o).

As many of you will know move2nz has been supporting Charmain Timmons and her children since July 2011, migrants threatened with being deported after living in New Zealand for four years.

There has been a huge amount of work behind the scenes, but we finally have some news and wanted to tell you all about it.

Background

Charmain arrived in New Zealand with her husband and two young children in December 2007. Many people migrate because of a problem and sadly some bring that problem with them as Charmain did, her secret was that her husband was abusing her. Sadly this continued in their new life, but Charmain somehow found the strength to break free.

What devastated this family and lead to two years of fear and suffering was that despite being granted Residency in principle in February 2009, just a passport stamp from full residency, their application was cancelled because Charmain’s husband broke the law ending up in jail.

What made this situation utterly unfair was that the crimes he committed were against Charmain and as a result she and their children were told to leave New Zealand.

Charmain asked again for help in all the right places, but was poorly advised leading inevitably to being threatened with deportation which would have forced the family to leave everything they owned and their dreams of the future in New Zealand. Charmain’s final hope was an appeal to Kate Wilkinson, the Associate Minister for Immigration, who alone had the power to save them.

Fighting Charmain’s corner

As soon as we heard about this situation we decided we had to do something – move2nz works to support migrants in New Zealand (like our work helping Martyn Payne and of course the ‘Smith’ family who lived in our home for 6 months while they sorted out their immigration problems).

In August 2011 we launched a facebook campaign and online petition to urge the Associate Minister to look at Charmain’s appeal and grant them residency. Over 1,200 people have since signed that petition and over a thousand used our page to send the petition message to the Prime Minister and Kate Wilkinson.

Unable to represent Charmain due to legal constraints move2nz worked to keep her spirits up with emotional support through what has been a terrible year during which Charmain fought constantly against her ex-husband’s attempts to take the children and a system which appeared intent on punishing the victim of violence while supporting the abuser.

Happily we were also able to contact some very special people (you know who you are) who were able help directly and have been working for months, albeit behind the scenes, to obtain a positive outcome.

Fantastic news

Now ten months on Charmain has received the reply from Kate Wilkinson the Associate Minister she has been waiting for. This letter confirms that:

“I have decided to instruct Immigration New Zealand (INZ) to cancel the deportation orders in force against Ms Leighton and her two children, in accordance with section 177 of the Immigration Act 2009. I am also authorising INZ to grant a work visa to Ms Leighton and student visas to her two children under section 61 of the Immigration Act 2009 (s61), subject to health and character requirements being met.“

This is fantastic news as the weight has been lifted off the family. With emotions so tightly wound you can imagine the reaction this letter created.

The family are not out of the woods yet as they have to apply for this visa and, without residency, are still in a temporary and potentially vulnerable position. However they now they have all they were ever asking for thanks to Kate Wilkinson and the many people who have worked on their behalf: a chance.

A message from Charmain

Once Charmain got over the shock of this announcement she sent through a message for the many people who have helped her:

“Kia Ora to all of our supporters globally and here in New Zealand.

The children and I received long awaited news that we are allowed to stay here in New Zealand, this country that is now our home. I am allowed to continue with my Bachelor of Social Work degree and be able to work. My children now have student visa’s and we as a family can work to residency.

Your continuing support has kept us strong and motivated. A lot of tears have been shed through this journey but sitting down and reading your thoughts have been truly comforting. I would like to say a heartfelt thank you to everyone who has been supporting my family but more importantly were supporting two innocent little children and I as their mother were their only voice.

Thank you again and my gratitude I cannot put into words.“

I would also like to thank everyone who helped through this difficult time. This is a great result and gives hope that when a mistake is being made the Associate Minister can and may step in to save a miscarriage of natural justice.

Whohoo!

move2nz is continuing to work to support and assist migrants suffering injustice. Watch this space.

Reading the initial updates on the Immigration New Zealand (INZ) website I was very concerned, so concerned in fact that I immediately wrote to the Immigration Minister to ask for clarification. You can download a copy of my letter here[446 Kb]. I will let you know if I get a reply.

Here are some points to consider that will affect a great many people and a look at what is being gained through these changes.

When will existing applications be processed?

What the immigration website indicated was that new applications under Tier One of the Parent Category would go straight to the front of the queue for allocation and processing. Applications for the Parent Sibling and Adult Child Stream would be added to the queue behind these and last of all would come the new Tier Two Parent application.

Tier One applications entered under the new Parent rules;

Existing applications entered under the old rules (both ‘Parent’ and Sibling/AdultChild’);

Tier Two applications entered under the new Parent rules.

There are 4,000 places in the annual quota – that’s 4,000 people not 4,000 applications (family category applications on average represent 1.93 people). What the INZ site appears to say is that the quota will initially be filled each year from Tier One, then any additional places will be allocated to the older applications and finally any places left will go to Tier Two.

The problem is that the old Parent Category with a quota of 4,000 was always over-subscribed.

More than 4,000 places have been approved already this year and the new rules for Tier One are unlikely to reduce this number.

So after 4,000 places have been taken by Tier One applications each year what happens to the older applications and Tier Two?

This is the main issue raised in my letter and I am deeply concerned that it will be years, possibly even decades, before these applications are finally allocated for processing unless the old quota of 1,400 places for the Sibling and Adult Child Category is left in place until these are cleared.

Of course a lot depends on how many people will be sitting in that queue behind Tier One waiting to be allocated a case-officer. So just how many are there and how long would it take to clear this backlog?

Just how big is the queue?

Immigration department statistics are a little out of date, only showing to January 2012 but more recent figures are shown each fortnight on the release showing numbers of Expressions of Interest selected under the Skilled Migrant Category.

At the bottom of the page this confirms that on May 16th the INZ had 6,406 applications entered under what is now the old Parent Sibling and Adult Child Category representing 12,348 people.

News stories have confirmed that the INZ accepted 7,400 applications before closing this Category which would represent approximately another 14,264 people giving a grand total of around 26,612 people standing in the queue to be allocated a case-officer.

Even if the old quota for the Sibling and Adult Child section of the category of 1,400 was maintained (and the immigration department have indicated this will not be the case) I calculate that it would take 19 years to clear this number, a completely unacceptable length of time.

Just what the Minister proposes to do to meet promises made of less than two years before applicants are allocated a case-officer will hopefully be revealed soon. I have great faith that the Minister will uphold the integrity of his department and not leave people waiting for decades to be allocated a case-officer.

What will be gained from these changes?

I may be speculating here, but for the first time in recent history the INZ is carrying a significant deficit, calculated to be as much as $44 million by the end of June.

As the INZ’s processing work is funded through fees paid by migrants it is little wonder that the department has a deficit after the Skilled Migrant Category, making up 60 percent of all approvals, was cut by nearly a third from January 2010 – a move I calculate loses the INZ $16.7 million per year in fees and levies (not including EOI payments).

The NZ government has confirmed many times that there is no new money in this year’s Budget to be delivered soon meaning that this massive deficit (which represents nearly a quarter of the INZ’s entire budget for processing) can only be cleared either through raising the number of migrants paying fees back up to 2009 levels, or through ‘efficiencies’ that would see migrants paying more than the cost of processing their applications. It is interesting that a new EOI stage and fee have now been added for parents.

Certainly closing an immigration category bringing just 1,400 people who could not claim benefits into New Zealand each year is exceedingly unlikely to save the $40 million expected and needed to clear this huge shortfall created as a result of policy changes.

Of course letting in an additional 7,400 applications, many of which will be incomplete, will create additional delays and backlogs adding more and more pressure to INZ staff who are likely to be squeezed pretty hard to clear this massive backlog of applications.

Please bear in mind when you are talking to immigration officers that this situation has been created as a result of policy changes completely outside their control. They will be doing a very hard job while watching a new computer system being built which will be likely to replace at least some members of staff, so please take it easy on them.

A backwards step

Finally as a parting thought, although I have no issue with the government’s right to change immigration policy it is hard to regard these changes as a positive step.

Attraction of skilled migrants has suffered a huge knock with huge cuts to the Skilled Migrant residence Category and the Essential Skills temporary work category implemented intentionally since the start of 2010. These latest changes are likely to threaten retention rates through removing family support.

Although the family members targeted by these changes do not necessarily generate significant income for the New Zealand economy it is clear that they are not a drain on it. Less than 2 percent of migrants claim core benefits in New Zealand, any amounts collected by family migrants would be claimed back by government from their sponsor, and employment rates put forward as a reason to close this category show that workplace participation just amongst these family members (i.e. excluding the skilled workers) of 66 percent compares well the New Zealand average of 68.2 percent.

In my experience of working with thousands of migrants a core issue reducing retention of highly skilled workers is lack of family support at key life stages. For example when a child is born or gets sick new mothers often look for the support of their mother to get through and many have to leave New Zealand to get this.

As any family with children will know, the wider family around you makes an incredible difference. I’m not just talking about baby-sitting, but it touches everything through general support and the feeling of safety and well-being created from having people who love you and will watch out for you and yours.

Most migrants leaving speak of a feeling of vulnerability which has grown to unmanageable proportions being so far from people who love them.

Many New Zealanders will understand this very well – one of the most common times for New Zealanders to head home is when they start a family and realise home is where the heart is. It’s not just about a place, it’s about having the security of your family around you.

I believe this change to block certain parents and any other family unable to make it through the Skilled Migrant Category – so stringent that it is open only to approximately 2 percent of any population – will most certainly decrease retention rates of skilled workers who are the main contributors to the $1.9 billion to $3 billion (net of costs) added to the New Zealand economy by migrants every year.

On behalf of Tammy Bell, owner of popular migrant community website move2nz.com. A transcript of Breakfast TV’s interview with Nathan Guy on 6/3/12 is also presented below.

Nathan Guy’s competency as Immigration Minister is being questioned after data received from the Official Information Act confirmed that Guy’s inflammatory claims that a ‘third of migrants were on benefits’ were wildly misinterpreted and bore no relation to official statistics.

On March 6th the new Immigration Minister Nathan Guy was interviewed on TVNZ’s Breakfast programme to discuss the government’s plans to favour wealthy migrants. This interview has gained importance as Mr Guy has since confirmed that this conversation was the official launch of new government policy.

During the interview the Minister confirmed

“…. those [immigrants] that have been coming in previously have been very reliant on benefits. Even though they have had to have a job offer, in a lot of cases we have found that after a study we have done on the first 18 months that a third of them have ended up requiring a benefit.”

The Minister went on to say that

“Hard working taxpayers in New Zealand need to know that their money is being well invested, not spent on people sitting around on benefits”.

At a time when the government’s welfare reforms are creating pressure to reduce the number of people dependent on benefits these comments naturally caused anger and resentment to be directed towards migrants.

The Minister’s comments were unusual in that they appeared to undermine the immigration department’s long term goal of attracting high value migrants to invest their money and skills into New Zealand.

Tammy Bell, owner of popular migrant community website move2nz.com commented

“The Minister’s comments have caused alarm with many prospective migrants, who are likely to take their valuable skills elsewhere if they believe there is a one-in-three chance of being on benefits within 18 months. Considering immigration adds between $1.9 billion and $3 billion each year to our economy, his comments were extremely damaging”.

Information used by Mr Guy was taken from the Department of Labour’s Long Term Immigration Survey (LISNZ) which followed 5,144 migrants who took up residency in New Zealand between November 2004 and October 2005. Data was collected at 6 months, 18 months and 36 months after arrival.

However the LISNZ confirms in its summarised May 2009 report entitled ‘New Faces, New Futures, New Zealand’ that:

“less than 2% [of migrants surveyed] had received a core benefit”.

Responding to a request lodged by Bell under the OIA about his comments on “migrants claiming benefits, Mr Guy responded:

“only 66% of migrants who obtained residence through the Sibling and Adult Child Category reported having a job when surveyed 18 months after taking up permanent residence in New Zealand.”

Bell says she was deeply surprised by this revelation.

“How can the Minister confuse ‘not being in paid work’ with ‘claiming a benefit’? I can’t imagine what more an Immigration Minister could have done to damage New Zealand’s international reputation as a migrant destination”.

The Sibling and Adult Child Category accounted for just 2.5% of residence applications approved in the year to October 2005, however the Minister’s televised statement appeared to relate to all migrants coming to New Zealand.

“Even if a third of this small group wasn’t in full time work, where is the cost to the taxpayer?” Bell asks. “Migrants can’t claim benefits in the first two years after receiving residency and even if they did their family sponsor would be liable to pay every cent back to the government”.

Official forms signed by the sponsors of family migrants applying to come to New Zealand include a declaration that they promise to provide financial support and an acknowledgement that any costs to the government will be repaid by the sponsor or they will face enforcement and court action

The LISNZ survey confirms that of these family members not in full-time work 14% were retired, 33% were caring for dependents, and 29% were studying.

While the Minister has focussed on employment data collected 18 months into the LISNZ survey, final reports confirm that nearly 10% more of the family group were employed by the end of the study, than at the beginning. The majority of family members not in work were found to be studying or looking after dependents, not ‘requiring benefits’ as the Minister has claimed.

On May 16th, in a move presented to save government $40 million per year, Nathan Guy closed the Sibling and Adult Child categories on the basis that they did not generate “sufficient economic benefit for New Zealand”.

This move has drawn criticism and court action from migrant groups angry that changes were introduced with just three days’ notice.

According to Bell, these family members are vital to the successful settlement of high value migrants being actively attracted to New Zealand by the immigration department.

Department of Labour reports have previously confirmed that 24% of migrants intending to stay permanently leave with a major cause being lack of family support.

The immigration department is funded from migrant fees. Immigration policies introduced in January 2010 effectively cut the number of skilled workers by nearly a third, leading to a record deficit for the department calculated to reach $44 million by June this year.

Mr Guy has admitted that migrant families will be split apart by the changes he has introduced which will enable his department to recoup losses caused by the decision to significantly reduce immigration numbers, however the Minister has not offered any explanation of why his television comments were incorrect.

Summary points:

The Minister stated that a third of migrants claim benefits within 18 months.

Less than 2% of migrants from the study actually received benefits.

Migrants not in work were confirmed to be retired, caring for dependents or studying.

The Minister has used this as a reason to close the Sibling and Adult Child categories.

Experts claim this will reduce New Zealand’s appeal for high value migrants.

Immigration adds between $1.9 billion and $3 billion net of costs to New Zealand’s economy each year.

Transcript of Breakfast TV interview with Nathan Guy, 6/3/12

Petra Bagust: You’re with Breakfast, the time is 6:56. Ah we’re going to talk about immigration now, are wealthy immigrants more welcome in New Zealand. If we take the government’s plans at face value it appears the answer is ‘yes’. Immigration changes will be aimed at reducing the number of unskilled migrants who struggle to get jobs and end up on the benefit. But are they fair? Immigration Minister Nathan Guy joins me now. Good Morning Mr. Guy.

Nathan Guy: Morning Petra, how are you?

Petra Bagust: Well thank you. Why do these changes need to be made?

Nathan Guy: Well what we have found Petra is that those that have been coming in previously have been very reliant on benefits. Even though they have had to have a job offer in a lot of cases we have found that after a study we have done on the first 18 months that a third of them have ended up requiring a benefit. We want to refocus this to ensure that those that are coming in have a decent income stream with them or via their sponsor and that they can perform in our modern day economy.

Petra Bagust: Alright. As it has been suggested does it in essence create an immigration system that favours the wealthy?

Nathan Guy: Well, we make no bones about that. We want to ensure that those that are coming in to our economy can hold down a job and ensure that they perform in our economy. Hard working taxpayers in New Zealand need to know that their money is being well invested, not spent on people sitting around on benefits, and you will know that the government is talking about big welfare reform plans this year, and these changes very much line up with those.

Petra: Alright. We want to talk about high income workers. What is the definition of ‘high income’ here?

Nathan Guy: Well we’re working through what those definitions will mean and I’ll announce those in due course. In essence the changes are that parents will still be able to come in, but they will need to have some financial dependence when they arrive and that will be savings that they will bring in, or indeed they’ll have cash-flow from their sponsor. And those adult children and siblings category, that will change and they will be required to apply through the Skilled Migrant Category.

Petra Bagust: So the balance I guess is between saving money, there is an estimated $40 million dollars going to be saved, and also the success of people immigrating to New Zealand and settling here. I guess some families will be split apart because of this new legislation.

Nathan Guy: That may happen, but of course they still have the option of replying through the Skilled Migrant Category. Parents still have the option of coming in to New Zealand if they have a sponsor and if they have that financial backing that I talked about before. So I make no apologies, this government is focused on driving the economy forward. Where possible we want migrants coming that are going to perform in our modern day economy.

Corin Dann: Look I’ve got no doubt the government is trying to tweak things here to make the system a bit better, but what I don’t like is this perception that somehow migrants are coming in here and sitting around and going on benefits. I’m sure there are some instances, but let’s face it, who drives your cabs? Who serves you at the supermarket counter? I don’t know about you but most of the immigrants that I come across are working in tough jobs, doing the jobs that a lot of kiwis don’t want to do frankly.

Petra Bagust: It is an interesting little can of worms and we’re talk about again to get back to us again if you have got feedback about this issue.

As regular readers of my newsletters and blogs (and anyone researching a permanent move) will know, the Skilled Migrant Category (SMC – you’ll get used to all of the acronyms!) of New Zealand’s Residence Programme starts with an Expression of Interest or EOI.

This EOI contains all of the information needed to make a decision about your application and costs $440 (if you submit it online, $560 if you send in a paper form). EOIs submitted go in to a ‘pool’ and each fortnight the immigration department selects a number of EOIs from the pool to meet agreed quotas.

The SMC is run on a points system (see a description of this category here and details of bonus points here) and EOIs need to score more than 100 points to be entered.

I have been concerned for some time that there is not enough clarity around the chances of EOIs being submitted being pulled from the pool before they expire and the applicants lose their money. Although there are no guarantees I believe that migrants have a right to transparency so that they can weigh up the decision before paying to enter an EOI.

Here is what the immigration department’s website says about EOI selections:

Expressions of Interest that have total points of 140 or more are selected automatically Expressions of Interest that have less than 140 points and include points for jobs or job offers are selected in sufficient numbers to meet the requirements of the New Zealand Residence Programme Additional Expressions of Interest may be selected from the pool to meet the requirements of the New Zealand Residence Programme using criteria set by the Minister of Immigration.

EOIs entered with less than 140 points and a job offer will beselected, but only within the quota.

EOIs entered with less than 140 points and no job may be selectedto meet requirements.

The NZ residence programme requirements will be met.

Is this what is actually happening?

Well yes and no. To help me explain I will use groupings that were commonly used by the immigration department before 2009 (policy has not changed since then, it’s just that some of these groups are no longer ever selected):

140 points or more with a job offer;

140 points or more;

100 – 135 points with a job offer;

100 points or more with 15 bonus points for work experience;

100 points or more with 10 bonus points for work experience;

100 points or more with 10 bonus points for qualifications;

100 points or more with no bonus points.

All of these groups are valid entries under the current system, but how do your chances stack up for each of these groups?

2011/2012

The immigration year starts on 1st July. To give you an idea of selection patterns here are the numbers which have been selected since July 2011 for groups above.

Group:

62% (6,308);

13% (1,320);

17% (1,730);

8% (861);

0% (0);

0% (0);

0% (0).

Groups 1 and 3 (those with job offers)
The emphasis in the Skilled Migrant Category is to bring in skilled workers who have either obtained job offers or are already working – i.e. groups 1 and 3. As a result in the year to date these two groups make up 79% of all EOIs accepted.

Group 2
On average the department try to select around 100 from Group 2 (which are high scoring applicants who do not yet have a job offer) each fortnight depending on what is available. Applicants entering Group 2 EOIs have a pretty good chance of being selected before their EOI lapses – on average so far in the year from July the department has selected 96 per fortnight so they are pretty much on target and could probably do with some more of these.

Group 4 (15 bonus points for work experience)
EOIs submitted in this group are not always selected each fortnight and overall only a very small number of these EOIs have been picked. What may catch people out is that the pass mark (i.e. the minimum number of points needed before selection) wanders around. For example on 14 December 2011 EOIs claiming 110 points were selected, but in other weeks only those with 120, 130 or even 135 will be taken from the pool.

Here is a graph of the pass-mark since July 2011 (applications with points below the red line would not be selected).

What you can see from this is that no EOI entered falling into this group scoring less than 110 points has been selected so far this year. For most months EOIs would need to score 125 points or better and the average ‘pass-mark’ (of points needed to be selected through 2011/12) has been 128 so far.

This is a marked change from 2010/11 when EOIs scoring over 100 points were often selected. In fact for 2010/11 the average ‘pass-mark’ needed for a reasonable chance of selection was only 108 points.

Group 5 (10 bonus points for work experience)
No EOIs have been selected falling into this group since 19 May 2011 when EOIs claiming just 100 points and upwards were selected. This means that all EOIs falling into this group entered between May 2011 and late September 2011 (so far) lapsed before being selected. Any EOIs being entered in this group are highly unlikely to be selected under the current regime.

Group 6 (10 bonus points for qualifications)
Again no EOIs have been selected falling into this group since 19 May 2011 have been selected meaning that many would have lapsed. Any EOIs being entered in this group are highly unlikely to be selected under the current regime.

Group 7 (no bonus points)
No EOIs in this group have been selected since December 2009 meaning that any EOI entered which did not exceed 140 points or claim bonus points between December 2009 and September 2011 would have lapsed. Any EOIs being entered in this group are highly unlikely to be selected under the current regime.

New Zealand Residence Programme requirements

An important point affecting migrant’s expectations of their EOI being selected from the pool is the statement that the current regime will meet “the requirements of the New Zealand Residence Programme”. Many migrants entering EOIs may feel that this means the chances of their EOI being selected has not diminished, however this is not the case.

The Skilled Migrant Category makes up around 58 percent of New Zealand’s Residence programme which is spread across three main streams: Business/Skilled (90% of which is the SMC); family and humanitarian. The Residence programme has a quota agreed by government, which used to be between 45,000 and 50,000 per year and is now a span of between 135,000 and 150,000 over the next three years.

In 2010/11 the immigration department failed to meet the Residence quota for the first time. The department did not miss this by a little, but by 4,263 or 9.5%. The majority of this shortfall came from the Skilled Migrant Category which was 3,855 or 14.3% short.

Creating a little transparency
Government reports blame the Canterbury earthquakes and global recession, however when asked for the data to support these conclusions the authors are not able to provide this information. Interestingly the reports fail to attribute any blame for the fall in numbers gaining residency through the Skilled Migrant Category to policy changes made by the immigration Minister, for example the 30% cut implemented since January 2010 in the number of EOIs selected for processing through the SMC residency stream!

This year (although the quotas have been now spread over 3 years) the department is heading for a shortfall of 8,442 (based on departmental statistics to February 2012) or 33.8% on the Skilled Migrant Category.

Migrants entering EOIs should be aware that although technically the requirements of the Residence programme are being met, this is because the ‘goalposts have been moved’. In reality applicants entering an EOI stand a significantly lower chance of that EOI being selected for processing as not only has the number of EOIs being pulled from the pool been cut by 30%, the percentage of those lucky applications which are declined has doubled over recent years to 17.8% so far in 2011/12.

Summary

I am concerned that immigration department statements, like the one I quoted earlier in this article, give many migrants thinking of entering EOIs overblown expectations of their chances of being selected. While those with job offers or over 140 points can reasonably expect to be selected under the current regime, thousands of others are entering EOIs in good faith not realising they stand little or no chance of being selected.

Figures for the number of EOIs which have lapsed (i.e. dropped out of the pool with the fee lost) are not available, however if numbers from 2009 had been maintained through the months since over 2,200 applications entered – which would have stood a good chance of being selected in previous years under what is presented as the same system – would have lapsed meaning the applicants would have lost their money.

Not considering additional costs to migrants (such as paying a professional to help prepare the EOI), fees received by the New Zealand government alone for applications which had little or no chance of success would add up to nearly $900,000!

I would very much like to see the position clarified in immigration department information so that migrants are given transparent information on the current criteria (which has been in force since January 2010) enabling them to make informed choices on whether to submit their EOI or not.

Hopefully this article will begin this process of building awareness and transparency.

A change in immigration department policy which could potentially affect almost all migrant workers was notified to immigration staff through an Internal Administration Circular on 14th November 2011.

This issue was originally identified by blog website NoRightTurn who obtained key documents under the Official Information Act. The story has now made it into mainstream headlines and I have written this article to explain what this change means and who it could affect.

What has changed?

When an application made to the immigration department for a visa is declined the reasons for refusing that application are always recorded in accordance with the
core principles of the immigration department: fairness and natural justice.

What the circular does is to direct staff on cases involving section 61 of the Immigration Act specifically not to record the reasons for declining an application, effectively making it impossible for the applicant to appeal or question the decision.

19. The rationale and reasons for the decision should not be recorded, either on the template, in the notes or in communication with the client.

So what is section 61 and when does it apply?

Basically S61 affects anyone who doesn’t have a valid visa. Anyone not a permanent residence or citizen can find themselves unlawfully in New Zealand if their visa expires or is cancelled for any reason. In this situation you are automatically and immediately classified as being in New Zealand unlawfully. I wrote an article about how easy it is to become an overstayer last May on Move2NZ’s blog.

What used to be known as S35A in the 1987 Immigration Act was updated to S61 in the 2009 Act:

Immigration Act 2009

61 Grant of visa in special case

The Minister may at any time, of the Minister’s own volition, grant a visa of any
type to a person who—

is unlawfully in New Zealand; and

is not a person in respect of whom a deportation order is in force.

A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

Under section 14 of the Act any non-citizen in New Zealand must hold a valid and current visa to be here. If you do not have one you are unlawfully in New Zealand and must leave.

If someone who is unlawfully in NZ applies for a visa to stay section 61 kicks in. Over the past few three years an average of 138 cases have fallen into this category with most of these being approved. At the end of December 2011 the department had 58 cases on hand.

A real-life example

Often migrants do not see how a change like this might affect them, so here is a real-life example of someone affected by this legislation:

A migrant came with his family to New Zealand aiming to get permanent residency through the Skilled Migrant Category. His skills were listed on the Long Term Skills Shortage and he was soon offered work.

To take up that job offer (and get the points he needed for his residency application) he obtained a temporary work visa, started working and then entered his Expression of Interest (EOI) for residency – a route taken by about 80% of people who gain permanent residency. Unfortunately just a month later he was made redundant through company restructuring.

He (and his family) were then unlawfully in New Zealand.

Why? Because his visa was linked to his job. No job, no visa and no visa = unlawfully in the country. He told immigration about this change of circumstances and was told to leave New Zealand.

Luckily, being highly skilled, he was offered another job and applied for a new work visa to allow him to stay in New Zealand and start work. As he was unlawfully in New Zealand this application was handled under S61 of the Immigration Act. His application was declined and again he was told to leave New Zealand.

He successfully appealed this decision with the Removals Authority (now the Immigration Protection Tribunal) on the basis that the immigration department’s decision was wrong. The immigration department was ordered to give him a 12 month work visa, giving him time for his application for residency to be processed – effectively making the residency application the test of whether he should go or stay. He now has residency.

Fairness and Natural Justice

While there may be an argument that this change does indeed breach New Zealand law (potentially violating both the right to justice and the Public Records Act.) I’ll leave that discussion to the lawyers.

What I do know is that “fairness and natural justice” are the core principles that the immigration department and system are based on. The immigration department’s operations manual has this to say:

Underpinning all our activity is the desire to provide the best possible service and to demonstrate honesty, fairness, confidentiality and respect in all our dealings.

As you would expect, being founded on these core principles the immigration system contains a number of processes to protect individuals from unfairness or mistakes, for example the right to appeal decisions to the Immigration Protection Tribunal (which reviews immigration decisions), the office of the Ombudsman (which reviews the actions of government departments and the High Court.

Why was this change made?

Appeals through the Ombudsman’s office and high court take time and resources and it appears that this decision has been made simply to cut costs. In contrast to this the immigration department’s operations manual has this to say:

Good decision-making requires attention to process, to how the decision is made, as well as looking at the merits of the case. A fair process is more likely to ensure a fair outcome. Decisions that are not made in the proper manner may be reviewed by the courts or become a subject of complaint to the Ombudsman

By making this change to systematically stop recording the reasons for an immigration decision the right of appeal is automatically removed as one needs the basis for the decision to be able to appeal it. Migrants in this position will be unable to use the systems set in place to protect them from mistakes or unfair decisions.

Taking action

Undermining these core principles of the immigration department cannot be a good thing and I believe this is simply a mistake which needs to be corrected quickly to avoid damage to the department’s reputation.

I’ll be writing to the Immigration Minister to highlight my concerns and will let you know the result.

If anyone is currently affected by this change please contact me to share your story – any information will be handled in strict confidence.

This article was first published on move2nz.com 29/2/12 – move2nz.com: helping inform and support migrants since 2005.

Kim Dotcom

A huge story in New Zealand right now is the arrest of Kim Dotcom, a wealthy investor who is being held on charges of reproducing and distributing infringing copies of copyright works – including movies, television programmes, music, software and books.

It’s a big story which has many facets, but in terms of immigration there are a couple of points of interest to me:

1) Dotcom was allowed into the country despite serious previous criminal convictions

I don’t have an issue with taking a decision on previous convictions, especially as full details were given to the immigration officials making the decision and the German system had wiped them anyway.

However in this case the immigration department has created a situation where they have drawn accusations of allowing Dotcom to buy his way past the good character test. Initially he was declined but somehow passed the good character test after paying $10 million to the NZ government. This looks even more shabby when another government department had decided to block Dotcom from buying land because in their opinion he failed the good character test.

We won’t even get into the revelations that Kim has diabetes, a slipped disc and hypertension but apparently had no problem with medicals.

The Immigration Minister knew about the decision but was not involved, however the Prime Minister John Key has come out in defence of the decision saying:

“I think because they deemed under the clean slate legislation he effectively didn’t have a record and he wasn’t trying to hide anything, those convictions were a long time ago, so they let him through,” he said.

The idea that admitting your crimes should confirm good character is a little difficult to swallow as is the inconsistency shown in these decisions.

Political support for Dotcom after he splashed cash around is extremely worrying. The government has already reduced the English Language requirements for investors (they only need an IELTS score of 4 now) moving away from concentrating on skilled workers to encouraging investors, and this could be a worrying sign that they are willing to bend the rules more if the right amount of money is on offer.

It transpired through the reporting that John Banks, then Mayor of Auckland, had admitted to giving Dotcom immigration advice in relation to his Residence application.

As Mayor of Auckland Mr. Banks may not have been aware that in providing immigration advice he would have been committing a serious criminal offence punishable by up to 7 years in prison – arguably more than Kim .com will face in the USA.

A perfect example of a much needed piece of legislation that was very poorly written and implemented (the Immigration Advisers Licensing Act 2007) was introduced in 2008 that prohibits anyone not licensed or exempt from providing immigration advice.

Mr. Banks is not registered as a licensed immigration adviser and does not appear to fall into any of the classifications of an exempt person as Mayor (although bizarrely as an MP he does as if this somehow gives him magical information on immigration law and policy).

Move2NZ as an independent migration commentator has written to the Immigration Advisers Authority to ask what their response to this will be. Their reply has been that they are thinking about it and will respond next week. Hmmm.